End the 'eavesdropping' battle

Court rulings are stacking up against this unconstitutional law

November 29, 2012

Adrian Perteet, left, and his brother Fanon were charged with violating the Illinois Eavesdropping Act after they recorded police with their cell phone cameras during an arrest in DeKalb in 2009. (Terrence Antonio James, Chicago Tribune)

For two years, Cook County State's Attorney Anita Alvarez has vigorously defended the indefensible notion that citizens shouldn't be allowed to record the public actions of police officers. Point your cell phone at a cop and press "record" and you could find yourself arrested and facing 15 years in prison.

That's a modern-day application (or misapplication) of the state's 50-year-old eavesdropping law, which makes it a felony to record a conversation without the consent of all parties. If one of the parties is a police officer, it's a Class 1 felony, triggering that possible 15-year prison term.

In May, a federal appellate court said the law likely violates the First Amendment, and the U.S. Supreme Court this week rejected Alvarez's plea to weigh in. So it's back to the trial court, where Alvarez could prolong her losing battle to preserve an unconstitutional law. Please, just stop.

This is not what the eavesdropping law is supposed to be about. It was passed before anyone imagined we'd all be carrying recorders around in our pockets and purses. And videotaping isn't the problem — it's the audio. Across the state, police and prosecutors have taken the position that recording the sounds of cops as they go about their jobs in public is eavesdropping.

Thus a Chicago artist who used a digital audio recorder to document his arrest for violating the city's anti-peddling law found himself charged with the much more serious crime of eavesdropping on police. A Loyola University professor making a documentary was detained after taping the arrest of a teen who'd jumped a CTA turnstile. A pair of brothers who tried to record an exchange with DeKalb police after a traffic stop ended up charged with a felony.

Prosecutors argue that the law ensures civilians can have candid discussions with police officers in public places, and that citizens with recording devices don't interfere with police work. It seems to us, though, that the arrests are meant to discourage people from making tattle-tapes that could show police in a negative light.

The 2010 lawsuit was filed by the American Civil Liberties Union of Illinois, which wants to record cops on the job as part of a long-standing police accountability program. The ACLU asked a federal judge to prohibit Alvarez from prosecuting its monitors under the eavesdropping law, arguing that it violates the First Amendment. The judge disagreed.

But the 7th U.S. Circuit Court of Appeals saw things differently. In its ruling, the appellate panel called the Illinois statute "an outlier," noting that eavesdropping laws in other states typically apply only to private conversations.

The panel said the ACLU was likely to prevail in its argument that the law violates the First Amendment, a key purpose of which is to protect free discussion of governmental affairs. Audio recording enables that speech, it said.

Back in a U.S. district courtroom Thursday, the ACLU will ask for a permanent injunction. Such a ruling would technically apply only to the ACLU case, but legal director Harvey Grossman says it would effectively end misguided prosecutions for "eavesdropping" because police agencies throughout Illinois will be on notice that the practice has been found unconstitutional.

We hope that's the end of it, because attempts to repair the law in the General Assembly have come up empty.

Rep. Elaine Nekritz, D-Northbrook, sponsored an amendment last spring that would have erased the prohibition on recording police officers in public. It sailed through the House 71-45 — then stalled in the Senate, where it somehow seemed logical that if Illinois cops are going to have to stop this unconstitutional behavior, the police lobby ought to get something in return. Broader surveillance powers, for example.

So a nice, clean fix was derailed by a far more complicated and controversial measure, and in the end nothing got done. Nice move.

Judges in two counties have ruled that the eavesdropping law is unconstitutional when used against citizens who record police in public. Some downstate prosecutors have stopped enforcing it. Chicago police Supt. Garry McCarthy has said he has no problem with such recordings; he ordered his officers not to arrest protesters wielding recorders during the NATO summit in May.

Yet the law remains on the books. It's been applied in a way that was never contemplated. Citizens have been arrested, threatened with prison time and saddled with huge legal bills.

The appellate court has said, in strong words, that the law is likely unconstitutional, and the U.S. Supreme Court did not disagree. The writing's on the wall. Ms. Alvarez, let this be the end of it.